The U.S. Department of Homeland Security (DHS) has let it be known, with little fanfare, that it has reconsidered its policy of disallowing temporary permission to enter the United States while a waiver application is pending.

A “waiver” is the name given to the type of approval given by the DHS for individuals who are inadmissible to the United States because of previous criminal or Immigration law violations (among other reasons). The DHS waives the grounds of inadmissibility and allows the person to enter the U.S. as a visitor during a specified time frame, usually five years. In a waiver application, the applicant discloses the grounds of inadmissibility, and presents his or her case as to why the DHS should overlook those grounds. The DHS approves a very high percentage of waiver applications, with most denials attributable to a combination of the severity and recency of the offenses, and the corresponding inability to demonstrate “rehabilitation” and the resumption of a lawful, compliant lifestyle.

Since a waiver applicant is by definition inadmissible to the United States, any delays in obtaining waiver approval could jeopardize the livelihood of a person who needs to enter the United States as part of his or her job.

Until 1997, a waiver application typically consisted of three components: the waiver application itself; a separate application for temporary permission to enter the U.S. while the application was pending; and, for renewal applicants or other “clean” cases, an application for a permanent waiver in the form of a border crossing card (BCC). It was customary for an applicant to receive permission to enter temporarily upon proof that a waiver application was pending. In some cases where the need to enter was urgent, such as with truck drivers delivering a load, approval could be granted immediately at the port of entry. All of that changed in 1997, when Congress amended the Immigration laws and modified the standard by which temporary entry to the U.S. could be obtained. At the same time, it discontinued the issuance of permanent waivers and BCC’s. (Permanent waivers and BCC’s issued before 1997 remain valid for entry to the U.S.) Since 1997, new waiver applicants, or applicants whose previous waivers have expired, have been unable to enter temporarily while an application is pending. This has caused inconvenience and hardship for those whose jobs depend on the ability to drive into the U.S.

Temporary entry for inadmissible persons is often referred to “advance parole” or “humanitarian parole.” The Immigration laws always contained a provision for emergency and humanitarian relief for inadmissible persons, but the former INS applied a lower, discretionary standard to drivers with pending waiver applications.

However, the 1997 law was interpreted as not allowing a lower discretionary standard, thus raising the standard for advance parole for all temporary entries to the higher emergency/humanitarian standard. This eliminated the ability of the former INS to use discretion and allow temporary entry for persons awaiting waiver decisions, even for persons who had received waivers in the past.

Many renewal applicants were able to retain U.S. entry privileges by applying for the renewal well before the expiration date, but the three-to five-month processing times still caused problems for the many drivers who had no legal authorization for entry to the U.S. while the waiver application was pending.

The problem only got worse in the post-9/11 era of stricter security clearance checks, which have increased processing times from the former three-to-five month expectation, to a year or more in many cases. Waiver application delays of that length have caused significant problems for drivers who are inadmissible to the United States and unable to pursue their livelihood as international drivers.

We have learned that a new interpretation of DHS regulations now allows U.S. Customs and Border Protection to review individual cases and exercise discretion, where appropriate, to provide temporary entry for persons awaiting waiver adjudications.

The announcement was made rather informally, without any written guidelines or published procedures. It is unlikely a driver can obtain immediate approval at the port of entry. A separate application on Form I-131, together with a $165 filing fee, is required, and can be filed at the port of entry, or by mail. An applicant should provide the relevant information about the waiver application and positive factors that point to a strong likelihood of waiver approval, together with factors that point to hardship to the applicant because of delays in waiver processing. Also, the applicant should show that he has been diligent in pursuing the waiver application, and that the hardship has not been “self-inflicted” because of his own delays or negligence.

We will continue to keep you advised on this important issue as more information becomes available.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.